Shortly into an oral argument last month in which the Supreme Court looked ready to destabilize public education as we know it by embracing a constitutional right to publicly funded religious charter schools, Justice Neil Gorsuch asked a striking question — perhaps one of the most important in his tenure thus far as a Supreme Court justice. 

“There are historic examples of funding being denied to religious schools and no free exercise claim followed,” he said. So why, Gorsuch wanted to know, were there no such legal challenges in American history, even though religious schools were routinely denied funds just like the Oklahoma religious school claiming a modern-day right to taxpayer funds? 

In an oral argument in which supporters of public education and church-state separation had plenty of cause for concern, the justice’s question offered a rare moment of intrigue. For if Gorsuch follows his originalist principles to an evenhanded conclusion, his question could pave the way to a sensible middle-ground outcome in which neither side gets everything it wants. 

Let’s start with the question itself. Three years ago, in Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that when it comes to interpreting the constitutional rights that states are bound to respect under the 14th Amendment, the “most important” fact is “how the states regulated” the practice at issue in the mid-1800s, “when the Fourteenth Amendment was adopted.”

Thus, in Dobbs, the court found it crucial that when states began to deny access to early-term abortion in the mid-19th century, “no one, as far as we are aware, argued that the laws they enacted violated a fundamental right.” To the conservative justices, then, the legal conclusion was “inescapable” — the right to abortion “is not deeply rooted in the Nation’s history and traditions.” 

In the current case, Oklahoma Statewide Charter School Board v. Drummond, religious school advocates are advancing a right based on the same logical structure. States, they argue, are bound by the 14th Amendment to provide religious charter schools with public funds. If the court wishes to be intellectually consistent, the analogous historical evidence should decide this claim — that is, it should hinge on how states regulated religious school funding requests in the years before the 14th Amendment. 

The history on this score is unequivocal. During the mid-19th century, from New York to Indiana and California to New Jersey, states denied numerous requests from religious schools for public funds on equal terms with their peer schools. And critically — just as was true in Dobbs — when the states regulated in this way, no one argued that that they violated a constitutional right. 

The complete absence of any historic claims to a free exercise right to taxpayer-funded religious schools is especially significant because, as Gorsuch astutely observed at oral argument, there were “state equivalents to the Free Exercise clause” in the U.S. Constitution that would have been obvious sources of litigation. Yet, as Gorsuch forcefully noted, “there were no challenges.” Any claimed right to publicly funded religious schools is thus not deeply rooted in our nation’s history and traditions. 

One might think that the attorneys for the religious charter school position would have been prepared with a response to this glaring historical problem. Yet counsel for the religious charter school position, an experienced advocate named James Campbell, was flummoxed. 

First, he confused the Free Exercise Clause with the Establishment Clause. Then, he argued that it didn’t matter that no religious school ever brought a state constitutional Free Exercise lawsuit for public funding because this case “involves the Free Exercise Clause of the First Amendment.” But that answer was painfully misguided too, because, as Campbell had just admitted, the states weren’t bound by the First Amendment until much later in history. 

Worst of all for Campbell, none other than Justice Samuel Alito has argued that state free exercise provisions are the “best evidence of the scope of the right embodied in the” Free Exercise Clause. So, on Alito’s logic, if there was no state free exercise right to religious school funding in the 1800s, then there is no federal free exercise right today, either. And if Gorsuch was inclined to follow that straightforward logic leading into oral argument, nothing anyone said would have moved him off it.  

Gorsuch’s question is fascinating. Not only does it suggest that religious charter school proponents might pump the breaks on their early celebrations, but it also opens a path to a surprising middle ground for the court.

The Supreme Court seems inclined to hold that states may choose voluntarily to fund religious charter schools without violating the Establishment Clause. That would be consistent with our nation’s history — in early America, some states did fund religious education. Of course, states today are already free to fund religious private schools through their voucher programs, so allowing them to do the same via charter programs would not materially change the status quo. 

But if the court truly wishes to follow history in an evenhanded fashion, it would also hold that states such as New York or California are free to make the opposite choice as well, and refrain from funding religious charter schools. 

Such a ruling would not only leave the issue of what kind of charter schools to fund up to the people’s elected representatives in each state — yet another theme in the Dobbs decision — it would also lend a powerful case study in support of the conservative justices’ claim that originalism can in fact be applied neutrally to deliver surprising results across the ideological spectrum. 

Of course, the reverse would be true as well. If the conservative justices rule in favor of the deeply ahistorical free exercise claim for religious charter school funding, the price they’ll pay will be far greater than the ire of those who support church-state separation in matters of public education. It will be a public nail in the coffin of originalism as a neutral theory of constitutional interpretation in the hands of this conservative court.

Aaron Tang is a law professor at the University of California, Davis. He is a former law clerk to Justice Sonia Sotomayor and Judge J. Harvie Wilkinson, III.